ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 23 June 2020

T O S T R I V E F O R B E T T E R T H I N G S

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DEVELOPMENT ASSESSMENT UNIT MEETING 23 JUNE, 2020

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 DA 654/2020/HA - OCCUPATION OF UNIT 14 FOR A PLACE OF PUBLIC WORSHIP – LOT 14 SP 98516, 14 589 WITHERS ROAD ROUSE HILL

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ITEM-3 DA 1124/2020/HA - FITOUT AND OCCUPATION OF SHOP 10 FOR A RESTAURANT AND ASSOCIATED SIGNAGE - LOT 8 SP 93305, 10/21 HEZLETT ROAD, NORTH KELLYVILLE

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PAGE 3 MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 9 JUNE 2020

PRESENT

Cameron McKenzie Group Manager – Development & Compliance Paul Osborne Manager – Development Assessment

Benjamin Hawkins Manager – Subdivision & Development Certification Angelo Berios Manager – Environment & Health

Craig Woods Manager – Regulatory Services Nicholas Carlton Manager – Forward Planning Kristine McKenzie Principal Executive Planner

APOLOGIES Nil

TIME OF COMMENCEMENT 8:30am

TIME OF COMPLETION 8:34am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 2 June 2020 be confirmed.

ITEM-2 DA 646/2019/HA/A - SECTION 8.2 REQUEST FOR REVIEW OF DETERMINATION OF DA 646/2019/HA FOR FORMALISATION OF THE CONVERSION OF A SECONDARY DWELLING TO A DETACHED DUAL OCCUPANCY - LOT 17 DP 223221, 5 KAREELA ROAD BAULKHAM HILLS

PUBLIC NOTIFICATION OF THE DETERMINATION PURSUANT TO ITEM 20(2)(c) AND (d) OF SCHEDULE 1 OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979

DECISION

The application be approved subject to conditions outlined in the report.

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PAGE 4 REASONS FOR THE DECISION:

 Section 4.15 (EP&A Act) – Satisfactory

 Section 8.2 (EP&A Act) - Satisfactory

 The Hills LEP 2019 – Satisfactory

 DCP Part B Section 3 – Dual Occupancy – Variations, see report.

 DCP Part C Section 3 – Landscaping – Variations, see report.

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION:

The development application was notified and no submissions were received.

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PAGE 5 ITEM-2 DA 654/2020/HA - OCCUPATION OF UNIT 14 FOR A PLACE OF PUBLIC WORSHIP – LOT 14 SP 98516, 14 589 WITHERS ROAD ROUSE HILL

THEME: Shaping Growth

OUTCOME: 5 Well planned and liveable neighbourhoods that meets growth targets and maintains amenity.

STRATEGY:

5.1 The Shire’s natural and built environment is well managed through strategic land use and urban planning that reflects our values and aspirations.

MEETING DATE: 23 JUNE 2020

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER

HARRISON DEPCZYNSKI

RESPONSIBLE OFFICER: PRINCIPAL EXECUTIVE PLANNER KRISTINE MCKENZIE

Applicant Sydney Northwest Muslim Community

Owner Nimzas Pty. Ltd.

Notification 14 days

Number Advised 37 Number of Submissions Two

Zoning IN2 Light Industrial Site Area Subject Unit 14 – 273m² List of all relevant s4.15(1)(a)

matters

Section 4.15 (EP&A Act) – Satisfactory.

LEP 2012 – Satisfactory.

DCP Part B Section 7 Industrial – Variation required, see report.

DCP Part C Section 1 Parking – Satisfactory.

Political Donation None Disclosed

Reasons for Referral to DAU 1. Variation to DCP 2. Submissions received.

Recommendation Approval subject to conditions

EXECUTIVE SUMMARY

The proposal is for the occupation of Unit 14 as a place of public worship for a maximum of 15 people. The use had commenced without development consent however is not currently in operation. The application also seeks partial demolition of unauthorised building work with some works to be retained, upgraded and formalised.

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PAGE 6 The application includes a variation to DCP Part B Section 7 – Industrial in regard to hours of operation. The DCP limits hours of operation to 7.00am to 6.00pm Monday to Saturday with no operation on Sundays or public holidays. The proposed hours are 9.00am to 2.00pm Tuesday to Thursday, and 7.30pm to 8.00pm seven days per week. The proposed hours of operation are considered satisfactory given the small scale of the use.

The application was notified and submissions from two property owners within the industrial complex were received. The issues raised primarily relate to scale, noise and parking impacts from the development. The small scale and afterhours use, adequate provision of car parking and recommended conditions of consent in regard to noise impacts are considered to address the issues raised.

The application is recommended for approval subject to conditions.

BACKGROUND

In May 2019, a complaint was received in regard to the operation of a place of worship from Unit 14 of the light industrial complex at 589 Withers Road, Rouse Hill.

The complaint was investigated by Council’s Development Monitoring Team who found that the use had not been approved and that building works had been undertaken within the unit without development consent. The use and the building works could not be classified as exempt development.

The subject Development Application was lodged on 13 November 2019. The application has been subject to ongoing fire safety issues regarding the unauthorised works within the unit. Subject to the imposition of conditions, including requiring the demolition of an internal wall, these matters have been adequately addressed.

PROPOSAL

The Development Application seeks approval for the use of the unit as a place of public worship.

The proposed hours of operation, uses and patron numbers are as follows:

Day Time Use Numbers (Maximum)

Tuesday 9.00am – 2.00pm Office duties 1-2 staff Wednesday 9.00am – 2.00pm Office duties 1-2 staff Thursday 9.00am – 2.00pm Office duties 1-2 staff Seven days per

week

7.30pm – 8.00pm Prayer 15 people

With respect to unauthorised building works, the works include an internal wall and a toilet facility. The unauthorised wall is required to be demolished and an unauthorised second toilet facility is to be retained and upgraded.

To comply with Building Code of Australia (BCA) requirements, the upstairs portion of the unit will only be used for storage and not for any worship, recreational or other purposes.

Attachments 4, 5, 6 and 7 show the existing unauthorised works, works to be demolished and the upper floor area.

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PAGE 7 ISSUES FOR CONSIDERATION

1. Compliance with Local Environmental Plan 2012 (i) Permissibility

The subject site is zoned IN2 Light Industrial pursuant to Local Environmental Plan 2012. A place of public worship is defined as:

place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.

Places of public worship are permitted with consent in the IN2 Light Industrial zone. The proposal is satisfactory with respect to permissibility.

2. Compliance with Development Control Plan 2012

The proposal has been assessed against the provisions of the Development Control Plan (DCP) particularly:

 Part B Section 7 Industrial

 Part C Section 1 Parking

With respect to Part C Section 1 Parking, the minimum parking rate for places of worship is one space per five seats. With a maximum 15 people proposed in the unit at any one time, the proposal requires the provision of three parking spaces. There are five parking spaces allocated to the unit.

Notwithstanding this, the applicant has submitted written parking agreements with Units 10 and 11 for use of their parking spaces outside of their business hours. Proposed parking arrangements for the use are shown in the table below:

Unit No. Time No. of Parking Spaces

Unit 14 (Subject Unit) All times 5

Unit 10 (Light Industrial Use)

Weekdays 7.30pm – 8pm Sunday Evenings

4 Unit 11 (Indoor Recreation

Facility)

Sunday Evenings 4

Total Available Parking Spaces

All times 5

Weekdays 7.30pm – 8.00pm 9

Sunday Evenings 13

There are also 20 common visitor spaces within the complex.

The proposed development achieves compliance with the relevant requirements of Part B Section 7 Industrial with the exception of the following:

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PAGE 8 DEVELOPMENT

CONTROL

DCP

REQUIREMENTS

PROPOSED DEVELOPMENT

COMPLIANCE 2.11(a) Hours of

Operation

Hours of operation within industrial areas (except for Bulky Goods Premises) are restricted to 7.00am to 6.00pm Monday to Saturday with no work or activity to be carried out on Sundays or public holidays.

Notwithstanding the above:

Occupants of sites that are not adjoining or adjacent to a residential property may request that the site be considered as a “Low Noise Generating use”.

Low noise generating uses may be permitted extended days and hours (up to 24 hours) of operation beyond those specified above.

In order to be considered as a Low Noise Generating use the planning application submitted must be accompanied by a report from an acoustic

consultant that

demonstrates that the proposed use will not generate noise in excess of 5dB(A) above the background noise levels, where measured at any boundary adjoining or adjacent to a residential property. This report must include all activities including any vehicle (especially heavy vehicle) movements to and from the site.

The proposed hours of operation are 9.00am to 2.00pm Tuesday to Thursday, and 7.30pm to 8.00pm seven days per week.

Classification as a

“Low Noise

Generating Use” has not been sought and an acoustic report has not submitted.

No, however the proposed hours of operation are considered

satisfactory given the scale of the use.

a) Hours of Operation

The DCP restricts hours of operation within industrial areas to 7.00am to 6.00pm Monday to Saturday with no work on Sunday or public holidays. The proposal includes hours of operation of 7.30pm to 8.00pm seven days per week.

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PAGE 9 Notwithstanding the above, the DCP states that occupants of sites that are not adjoining or adjacent to a residential property may request that the site be considered as a “Low Noise Generating use”. Low noise generating uses may be permitted extended days and hours (up to 24 hours) of operation beyond those specified above.

However, in order to be considered as a Low Noise Generating use, the development application must be accompanied by a report from an acoustic consultant that demonstrates that the proposed use will not generate noise in excess of 5dB(A) above the background noise levels, where measured at any boundary adjoining or adjacent to a residential property. This report must include all activities associated with the use.

The Applicant has not submitted an acoustic report with the application or sought for the proposed place of worship to be classified as a “Low Noise Generating Use.”

The applicant has however provided the following justification for the variation.

This application is seeking to extend the operating hours from 6.00 pm currently to 8.00 pm in order to accommodate for the prayer that occurs daily from 7.30 pm to 8.00 pm. This use does not generate any significant noise as they are contained within the ground floor of the building and do not directly adjoin residential properties.

It is requested that Council consider this variation from control 2.11(a) for the purpose of prayer, meditation and spiritual reflection.

Comment:

The DCP objective is as follows:

 To ensure that industrial developments operate in a manner compatible with adjoining land uses.

The proposal is located within a light industrial complex that adjoins other similar light industrial uses, with residential properties opposite the site across Withers Road. Other approved uses within the complex include indoor recreational facilities such as group fitness and martial arts with approved hours of operation until 9pm.

The Applicant has not submitted an acoustic report with the application or sought for the proposed place of worship to be classified as a “Low Noise Generating Use” in accordance with the DCP. However, Unit 14 is located on the rear north-east side of the complex, which faces away from Withers Road and the residential land opposite. Therefore, any potential adverse noise impacts will not be directed towards residential properties. In addition, the land adjoining to the rear of the subject site (currently vacant) is zoned IN2 Light Industrial.

Council’s Environmental Health Officer has reviewed the proposal and raised no objections subject to a number of conditions including limiting amplified music, lighting and offensive noise management. With respect to offensive noise, Condition 18 states that upon the receipt of a verified noise complaint an acoustic assessment will be required to be undertaken by an appropriately qualified consultant and submitted to Council’s Manager – Environmental Health for review. Any noise attenuation measures directed by Council’s Manager - Environment and Health then must be implemented.

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PAGE 10 Subject to the recommended conditions, it is considered the development is capable of operating in a manner compatible with the adjoining land uses and meets the DCP objective.

No objection is raised to the proposed variation to hours of operation in this instance.

3. Issues Raised in Submissions

The proposal was notified for 14 days and two submissions were received. The issues raised in the submissions are summarised below.

ISSUE/OBJECTION COMMENT

Concern is raised that more than 15 people will utilise the premises for prayer.

The Statement of Environmental Effects states a maximum of 15 attendees is proposed. The applicant was requested to clarify proposed numbers in a request for information noting available seating and floor space in the unit. The applicant advised that not all available seating would be used. A condition has been recommended which limits the maximum capacity to 2 persons for administration during standard business hours and 15 persons for prayer in the evening (See Condition 15). Should a complaint be received, the matter will be investigated.

The congregation of people will impact other businesses in the complex.

The proposed use during core business hours is only for ancillary office duties which involve no more than two people.

The primary use for prayer of up to 15 persons takes place between 7.30pm and 8.00pm. This is when potential noise and traffic impacts are most likely to occur.

Council’s Environmental Health Team have reviewed the proposal and raised no objection subject to conditions regarding noise management which include the receipt of a verified offensive noise complaint and no speakers for amplified music external to the building or mounted on common walls within the unit (See Conditions 16 and 18).

With respect to potential traffic and parking impacts, the proposal provides parking in excess of the minimum requirements specified in the DCP.

Concern was raised with parking impacts from the development, notably with worshippers using allocated parking for other units.

The subject unit is allocated five parking spaces under the strata plan. The Applicant has also submitted written parking agreements with two other units within the complex for use of their parking spaces during specified periods. Section 2 above details the proposed parking arrangements.

A condition has been recommended which requires a parking plan to be made available to all worshippers (see Condition 3).

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PAGE 11 5. Internal Referrals

The application was referred to following sections of Council:

Environmental Health

No objection was raised to the proposal subject to conditions restricting lighting, noise, preparation of food, and maximum occupancy for the development (see Conditions 15 - 19).

Fire Safety

No objection was raised to the proposal subject to conditions. Fire Safety recommended conditions regarding the demolition of the unauthorised wall and for the upgrade of the second bathroom facility to meet Building Code of Australia requirements (see Conditions 1 and 11).

CONCLUSION

The Development Application has been assessed against the relevant heads of consideration under Section 4.15 of the Environmental Planning and Assessment Act, 1979, Local Environmental Plan 2012 and Development Control Plan 2012 and is considered satisfactory. The issues raised in the submissions have been addressed in the report and do not warrant refusal of the application.

Approval is recommended subject to conditions.

IMPACTS Financial

This matter has no direct financial impact upon Council's adopted budget or forward estimates.

The Hills Future Community Strategic Plan

The proposed development is consistent with the planning principles, vision and objectives outlined within “Hills 2026 – Looking Towards the Future” as the proposed development provides for satisfactory urban growth without adverse environmental or social amenity impacts.

RECOMMENDATION

Pursuant to the provisions of Section 4.15 of the Environmental Planning and Assessment Act 1979, the application be approved as follows:-

GENERAL MATTERS

1. Development in Accordance with Submitted Plans (as amended)

The development being carried out in accordance with the approved plans and details submitted to Council, as amended in red, stamped and returned with this consent.

The amendments in red include: -

 The unauthorised wall is to be demolished in accordance with the conditions of this consent.

 The second WC is to be upgraded in accordance with the conditions of this consent.

 The upper floor area is approved for storage use only to comply with Building Code of Australia requirements.

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PAGE 12 REFERENCED PLANS AND DOCUMENTS

DESCRIPTION DATE SUBMITTED

Ground Floor Plan 21 January 2020

Upper Floor Plan 21 January 2020

No work (including excavation, land fill or earth reshaping) shall be undertaken prior to the issue of the Construction Certificate, where a Construction Certificate is required.

2. Completion of Works

All works the subject of this consent are to be completed within three months of the endorsed date of this consent.

The unit must not be occupied until all works have been completed and an occupation certificate has been issued.

3. Provision of Parking Spaces

The development is required to be provided with five strata allocated off-street car parking spaces. These car parking spaces shall be available for off street parking at all times. The development is also required to be provided with additional car parking spaces for use by Unit 14 as specified below.

Unit No. Time No. of Parking Spaces

Unit 10 Weekdays 7.30pm – 8pm

Sunday Evenings

4

Unit 11 Sunday Evenings 4

Should either car parking agreement for the use of the additional car parking spaces cease, the development consent will be required to be modified.

A parking plan is to be made readily available to all visitors.

4. Separate application for signs

A separate application is to be submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures unless otherwise permitted pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

5. Construction Certificate

Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier.

Plans submitted with the Construction Certificate are to be amended to incorporate the conditions of the Development Consent.

6. Demolition Notification

Both Council and any adjoining properties must be notified in writing five days before demolition works commence.

7. Building Work to be in Accordance with BCA

All building work must be carried out in accordance with the provisions of the Building Code of Australia.

8. Demolition Inspections

Before demolition works commence, a pre-demolition inspection must be arranged with Council’s Development Certification team. All conditions required to be addressed before works commence must be satisfied. Once demolition works are complete, a post demolition inspection must be arranged with Council’s Development Certification team. Fees apply and are to be paid prior to or at the time of booking the inspection. The Development Certification Team can be contacted to book and pay for inspections on 9843 0431.

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PAGE 13 9. Air Conditioner Installation

The construction or installation of an air-conditioning unit must comply with the development standards of Section 2.6 (1A) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

You are reminded that the air conditioning must be designed so as not to operate:

(i) between 7am and 10pm — at a noise level that exceeds 5 dB(A) above the ambient background noise level measured at any property boundary, or

(ii) Between 10pm and 7am — at a noise level that is audible in habitable rooms of adjoining residences.

10. Management of Construction and/or Demolition Waste

Waste materials must be appropriately stored and secured within a designated waste area onsite at all times, prior to its reuse onsite or being sent offsite. This includes waste materials such as paper and containers which must not litter the site or leave the site onto neighbouring public or private property. A separate dedicated bin must be provided onsite by the builder for the disposal of waste materials such as paper, containers and food scraps generated by all workers. Building waste containers are not permitted to be placed on public property at any time unless a separate application is approved by Council to locate a building waste container in a public place.

Any material moved offsite is to be transported in accordance with the requirements of the Protection of the Environment Operations Act 1997 and only to a place that can lawfully be used as a waste facility. The separation and recycling of the following waste materials is required: metals, timber, masonry products and clean waste plasterboard. This can be achieved by source separation onsite, that is, a bin for metal waste, a bin for timber, a bin for bricks and so on. Alternatively, mixed waste may be stored in one or more bins and sent to a waste contractor or transfer/sorting station that will sort the waste on their premises for recycling. Receipts of all waste/recycling tipping must be kept onsite at all times and produced in a legible form to any authorised officer of the Council who asks to see them.

Transporters of asbestos waste (of any load over 100kg of asbestos waste or 10 square metres or more of asbestos sheeting) must provide information to the NSW EPA regarding the movement of waste using their WasteLocate online reporting tool www.wastelocate.epa.nsw.gov.au.

11. Clause 94 Upgrade

Under clause 94 of the Environmental Planning & Assessment Regulation, the following fire safety/Building Code of Australia (BCA) works are to be undertaken with the construction certificate works and are to be completed prior to the issue of the occupation certificate:

i. Floor material/coverings to the premises are to be upgraded to comply with Specification C1.10 of the BCA. Certification of the critical radiant flux and smoke development rate of floor materials are to be submitted to the Principal Certifier.

ii. Emergency lighting is to be provided to every room or space used by the public.

iii. The existing sanitary facility is to be upgraded so that it contains accessible sanitary features, appropriate to FP2.1 of the BCA.

iv. Mechanical exhaust ventilation is to be provided to the existing sanitary facility in accordance with F4.5 of the BCA. An airlock or door screening is also to be provided, appropriate to FP4.4 of the BCA.

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PAGE 14 PRIOR TO WORK COMMENCING ON THE SITE

12. Demolition Works and Asbestos Management

The demolition of any structure is to be carried out in accordance with the Work Health and Safety Act 2011. All vehicles transporting demolition materials offsite are to have covered loads and are not to track any soil or waste materials on the road. Should demolition works obstruct or inconvenience pedestrian or vehicular traffic on adjoining public road or reserve, a separate application is to be made to Council to enclose the public place with a hoard or fence. All demolition works involving the removal and disposal of asbestos must only be undertaken by a licenced asbestos removalist who is licenced to carry out the work.

Asbestos removal must be carried out in accordance with the SafeWork NSW, Environment Protection Authority and Office of Environment and Heritage requirements. Asbestos to be disposed of must only be transported to waste facilities licenced to accept asbestos. No asbestos products are to be reused on the site.

DURING CONSTRUCTION 13. Hours of Work

Work on the project to be limited to the following hours: - Monday to Saturday - 7.00am to 5.00pm;

No work to be carried out on Sunday or Public Holidays.

The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work.

14. Critical Stage Inspections and Inspections Nominated by the Principal Certifier Section 6.6 of the Environmental Planning and Assessment Act 1979 requires critical stage inspections to be carried out for building work as prescribed by Clause 162A of the Environmental Planning and Assessment Regulation 2000. Prior to allowing building works to commence the Principal Certifier must give notice of these inspections pursuant to Clause 103A of the Environmental Planning and Assessment Regulation 2000.

An Occupation Certificate cannot be issued and the building may not be able to be used or occupied where any mandatory critical stage inspection or other inspection required by the Principal Certifier is not carried out. Inspections can only be carried out by the Principal Certifier unless agreed to by the Principal Certifier beforehand and subject to that person being an accredited certifier.

THE USE OF THE SITE

15. Hours of Operation, Use and Maximum Attendees

The hours of operation, usage times and maximum attendees being restricted to the following:

Day Time Use Maximum Attendees

Tuesday 9.00am – 2.00pm Office duties 5

Wednesday 9.00am – 2.00pm Office duties 5

Thursday 9.00am – 2.00pm Office duties 5

Seven days per week 7.30pm – 8.00pm Prayer 15 Any alteration to the above will require the further approval of Council.

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PAGE 15 16. Noise to Surrounding Units

There shall be no speakers for amplified music external to the building or mounted on common walls within the unit.

17. Lighting

Any lighting on the site shall be designed so as not to cause a nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of Obtrusive Effects of Outdoor Lighting.

18. Offensive Noise - Acoustic Report

The use of the premises and/or machinery equipment installed must not create offensive noise so as to interfere with the amenity of the neighbouring properties.

Should an offensive noise complaint be received and verified by Council staff, an acoustic assessment is to be undertaken (by an appropriately qualified consultant) and an acoustic report is to be submitted to Council’s Manager – Environment and Health for review. Any noise attenuation measures directed by Council’s Manager - Environment and Health must be implemented.

19. Preparation of Food

There shall be no preparation of food for sale within the unit without prior approval of Council.

ATTACHMENTS 1. Locality Plan 2. Aerial Photograph 3. Site Plan

4. Proposed Ground Floor Plan 5. Proposed First Floor Plan 6. Photo of Unauthorised Wall

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PAGE 16 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 17 ATTACHMENT 2 – AERIAL PHOTOGRAPH

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PAGE 18 ATTACHMENT 3 – SITE PLAN

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PAGE 19 ATTACHMENT 4 – PROPOSED GROUND FLOOR PLAN

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PAGE 20 ATTACHMENT 5 – PROPOSED FIRST FLOOR PLAN

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PAGE 21 ATTACHMENT 6 – PHOTO OF UNAUTHORISED WALL

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PAGE 22 ITEM-3 DA 1124/2020/HA - FITOUT AND OCCUPATION OF SHOP 10 FOR A RESTAURANT AND ASSOCIATED SIGNAGE - LOT 8 SP 93305, 10/21 HEZLETT ROAD, NORTH KELLYVILLE

THEME: Shaping Growth

OUTCOME: 5 Well planned and liveable neighbourhoods that meets growth targets and maintains amenity.

STRATEGY:

5.1 The Shire’s natural and built environment is well managed through strategic land use and urban planning that reflects our values and aspirations.

MEETING DATE: 23 JUNE 2020

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER

HARRISON DEPCZYNSKI

RESPONSIBLE OFFICER: PRINCIPAL EXECUTIVE PLANNER KRISTINE MCKENZIE

Applicant Eplanning Pty. Ltd.

Owner Y Ganeshamoorthy

Notification 14 days Number Advised 14 Number of Submissions Nil

Zoning R1 General Residential Site Area Shop 10 – 82m²

List of all relevant s4.15(1)(a) matters

Section 4.15 (EP&A Act) – Unsatisfactory.

SEPP (Sydney Region Growth Centres) 2006 – Unsatisfactory.

SEPP No. 64 Advertising and Signage – Unsatisfactory.

North Kellyville Precinct Development Control Plan 2018 – Unsatisfactory

Political Donation None Disclosed

Reasons for Referral to DAU Recommended for refusal Recommendation Refusal

EXECUTIVE SUMMARY

The Development Application is for the occupation and fitout of Shop 10 for a restaurant and associated signage.

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PAGE 23 The subject site is located on land zoned R1 General Residential and the proposed use for a restaurant is prohibited in the zone.

In addition, adequate information was not submitted with the application regarding hours of operation, staff and patron numbers, signage and food premises fit-out details.

The application was notified to adjoining property owners however no submissions were received.

The application is recommended for refusal.

BACKGROUND

On 13 December 2012, DA 677/2013/HB was approved for the construction of a mixed use development comprising ground level neighbourhood shops, 40 residential units and 126 car parking spaces on the subject site. The approval has been subject to a number of Section 4.55 Modifications which included changes to building height, unit yield and commercial floor areas but relevantly retained the approved ground level neighbourhood shop uses.

On 8 June 2018, DA 1796/2018/HA was approved for the occupation and fitout of ground floor Shops 3 and 4 for a restaurant. This included a change of use from a neighbourhood shop to a restaurant. The assessment report for the application addressed permissibility of the proposed use stating restaurants were permitted with consent in the R1 General Residential Zone pursuant to SEPP (Sydney Region Growth Centres) 2006.

On 4 July 2018, a Complying Development Certificate (CDC) was issued for the change of use of Shop 10 from a neighbourhood shop to an office premise (permitted use). This remains the current approved use for Shop 10.

On 28 May 2019, DA 1665/2019/HA was lodged for the occupation and fitout of Shop 7 for a food and drink premises. During the assessment of the application the issue of whether the proposed use for a food and drink premises was permitted in the R1 General Residential Zone was raised. The issue related to the interpretation of land use definitions in the SEPP and the use of ‘group terms’ which were utilised in the Standard Instrument LEP. As SEPP (Sydney Region Growth Centres) 2006 was developed and implemented by the State government, Council staff requested clarification on this matter from the Department of Planning and Environment (DPE).

During discussions with the DPE Officers, Council staff were advised that whilst SEPP (Sydney Region Growth Centres) 2006 was not a Standard Instrument LEP, group terms land use definitions were used. Therefore, the proposed use for a food and drink premises was considered a type of retail premises which were listed as prohibited in the R1 General Residential zone. On this advice DA 1665/2019/HA was withdrawn by the applicant as it was a prohibited use in the zone.

The subject Development Application was lodged on 25 February 2020. On 31 March 2020 a letter was sent to the applicant requesting withdrawal of the application based on the permissibility of the use. The applicant advised on 11 May 2020 that the application would not be withdrawn and they would await determination of the application.

PROPOSAL

The Development Application is for the occupation and fitout of Shop 10 for a restaurant and associated signage.

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PAGE 24 The fit-out includes:

 Commercial kitchen;

 Bar area;

 Cold display;

 Internal customer seating and table areas;

 Outdoor seating on the terrace area; and

 Business identification signage.

No details were provided with the application regarding hours of operation, staff and patron numbers or signage, however seating for 101 persons is indicated on plans.

ISSUES FOR CONSIDERATION

1. Compliance with State Environmental Planning Policy (Sydney Region Growth Centres) 2006

(i) Permissibility

The subject site is zoned R1 General Residential pursuant to SEPP (Sydney Region Growth Centres) 2006. An extract of the land use table for the R1 General Residential zone is provided below.

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PAGE 25 The proposed use is for a ‘restaurant’ which is defined as follows:

restaurant means a building or place the principal purpose of which is the provision of food or beverages to people for consumption on the premises, whether or not take away meals and beverages or entertainment are also provided.

Restaurants are listed as a type of ‘food and drink premises’ which are defined as follows:

food and drink premises means retail premises used for the preparation and retail sale of food or drink for immediate consumption on or off the premises, and includes restaurants, cafes, take away food and drink premises, milk bars and pubs.

As stated in its definition, a food and drink premises means a retail premises. ‘Retail premises’ are defined as follows:

retail premises means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale).

Retail premises are listed as prohibited in the R1 General Residential zone pursuant to SEPP (SRGC) 2006. A restaurant (being a type of food and drink premises and more broadly a type of retail premises) is therefore prohibited in the R1 General Residential zone.

It is noted that a ‘neighbourhood shop’ is a permissible use in the R1 General Residential zone however, the ‘restaurant’ definition is the ‘best fit’ in terms of description of the proposal. Further, neighbourhood shops are limited to maximum 80m² in retail floor area pursuant to Clause 5.4 of the SEPP. Whilst retail floor area is not specifically defined, the 81m² of shop floor space plus additional outdoor seating area would not comply with the 80m² maximum retail floor area requirement for neighbourhood shops.

The proposed development is unsatisfactory with respect to permissibility as it is prohibited.

2. Compliance with The Hills Development Control Plan

The proposal has been assessed against the provisions of North Kellyville Development Control Plan, particularly:-

Section 5.0 – Special Area Controls

Section 5 contains special area controls that apply to retail and commercial developments within the commercial centres of the North Kellyville Precinct. The site is located within the

‘Hezlett Road Neighbourhood Centre’ where these special area controls apply. The majority of the special area controls relate to design considerations for the construction of new development and are not relevant to the occupation and fitout of individual tenancies within a centre. However, controls relating to parking and signage are applicable to this development application.

The proposed development is satisfactory in regard to the above Development Controls with the exception of the following:

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PAGE 26 DEVELOPMENT

CONTROL

DCP

REQUIREMENTS

PROPOSED DEVELOPMENT

COMPLIANCE 5.1.3 Signage This Section contains

general signage controls including maximum areas and dimensions.

There are also specific controls relating to illumination and road safety.

No signage details were provided with the application.

The Statement of Environmental Effects also has not addressed this section rather stating that is it

“to be further addressed.”

Unknown – the applicant has not provided signage details.

a) Signage

The DCP contains several controls regarding signage applicable to the development.

However, as no signage details have been submitted with the application, compliance with these controls cannot be assessed.

3. SEPP No. 64 Advertising and Signage

The proposal includes signage however no details of the proposed signage were submitted with the application. Clause 8 of the SEPP states the following:

8 Granting of consent to signage

A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:

(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.

In the absence of signage details, an assessment in accordance with Clause 8 of the SEPP cannot be undertaken, and development consent cannot be granted.

The proposal is unsatisfactory with respect to SEPP 64.

4. Internal Referrals

The application was referred to following sections of Council:

Environmental Health

Insufficient information was submitted in order for Council’s Environmental Health Officer to complete their assessment. If the proposal was supported, additional information would be required regarding food premises fit-out details and hours of operation.

Fire Safety

Insufficient information was submitted in order for Council’s Fire Safety Officer to complete their assessment. Specifically, the maximum number of occupants (staff and patrons) was not provided. Fire Safety was unable to carry out an assessment regarding Building Code of Australia upgrades in accordance with Clause 94 of the Environmental Planning and

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PAGE 27 Assessment Regulation 2000. They were also unable to impose a condition relating to maximum capacity signage in accordance with Clause 98D of the Regulation. If the proposal was supported, additional information would be required regarding fire safety matters.

CONCLUSION

The Development Application has been assessed against the relevant heads of consideration under Section 4.15 of the Environmental Planning and Assessment Act, 1979, State Environmental Planning Policy (Sydney Region Growth Centres) 2006, State Environmental Planning Policy No. 64 Advertising and Signage and the North Kellyville Development Control Plan. The proposal is considered unsatisfactory as the proposed use is prohibited in the zone. In addition, insufficient information was submitted regarding other aspects of the application including hours of operation, staff and patron numbers, signage and food premises fit-out details.

Refusal of the application is recommended.

IMPACTS Financial

Refusal of this application may be subject to a Class 1 Appeal which will incur legal costs if defended.

The Hills Future Community Strategic Plan

The proposed development is inconsistent with the planning principles, vision and objectives outlined within “Hills 2026 – Looking Towards the Future” as the proposed development does not provide for satisfactory urban growth without adverse environmental or social amenity impacts as the use is prohibited in the zone.

RECOMMENDATION

The Development Application be refused for the following reasons:

1. The proposed use for a restaurant is prohibited within Zone R1 General Residential pursuant to State Environmental Planning Policy (Sydney Region Growth Centres) 2006.

(Section 4.15(1)(a)(i) and 1(c) of the Environmental Planning and Assessment Act, 1979) 2. Development consent cannot be granted as State Environmental Policy No. 64 Advertising and Signage requirements cannot be satisfied as no signage details were submitted with the application.

(Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act, 1979)

3. The proposal has not adequately addressed environmental health and fire safety issues.

(Section 4.15(1)(a)(i), (iv), 1(b) and 1(c) of the Environmental Planning and Assessment Act, 1979).

4. Insufficient information has been submitted in support of the application in accordance with Clause 50 of the Environmental Planning & Assessment Regulation 2000: -

 Details regarding proposed hours of operation, staff and patron numbers, signage, and food premises fit-out details have not been provided.

(Section 4.15 1(a)(iv) of the NSW Environmental Planning and Assessment Act 1979).

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PAGE 28 ATTACHMENTS

1. Locality Plan 2. Aerial Photograph 3. Site Plan

4. Restaurant Layout Plan

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PAGE 29 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 30 ATTACHMENT 2 – AERIAL PHOTOGRAPH

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PAGE 31 ATTACHMENT 3 – SITE PLAN

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PAGE 32 ATTACHMENT 4 – RESTAURANT LAYOUT PLAN